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Oct. 13 — The U.S. Supreme Court examined the constitutionality of Florida's capital sentencing scheme for the fourth time during oral argument Oct. 13.

Despite having upheld it on all three previous occasions, several justices here—and in particular Justices Elena Kagan and Sonia Sotomayor—seemed troubled by several peculiarities in Florida's system.

In Florida, capital sentencing juries give advisory verdicts, which need not be unanimous, as to aggravating factors and punishment. Juries are told that their verdict is merely advisory, and that the judge will impose the final sentence.

The court most recently approved Florida's system in 1989, in Hildwin v. Florida, 490 U.S. 638 (1989).

However, in 2002, the high court held that aggravating factors in capital crimes must be determined by a jury, in Ring v. Arizona, 536 U.S. 584 (2002).

Here, Timothy Lee Hurst was convicted in 1998 of killing a coworker while robbing the Popeye's restaurant at which he worked.

His sentencing jury was charged with considering two aggravating factors, and returned a verdict of death by a 7–5 vote. Florida law doesn't permit sentencing juries to issue special verdicts, so it is impossible to determine if a majority of jurors found any one aggravating factor.

Death from Life?

During oral argument Florida Solicitor General Allen Winsor sparred with several justices, including Kagan and Justice Anthony M. Kennedy, about whether as a practical matter, a Florida judge could impose a death sentence on a defendant for whom a jury had recommended a life sentence.

“You say this hasn't happened,” Kennedy said. The judge “would probably be reversed. But theoretically this could happen.”

Justice Stephen G. Breyer pointed to several Florida Supreme Court cases that “suggested to me that they thought the answer to that question as a matter of Florida law was ‘yes.'”

Winsor responded that it was permissible under Florida law, but wouldn't be consistent with Ring.

“You're saying it couldn't happen consistent with Ring, meaning that there are certain applications of the Florida law that would be unconstitutional even in your view,” Kagan said.

Eventually, Justice Antonin Scalia seemed to tire of the discussion of hypotheticals. “We don't sit in judgment of a theoretical scheme that Florida has set up, do we?” he asked.

“And don't we have to adjudge that there has been unconstitutionality in this case?” he continued.

Winsor agreed to both questions, but Kagan was undeterred. “Could I give you another hypothetical scheme, notwithstanding that we don't sit in judgment of hypothetical schemes?” she asked.

Jurors' Responsibility

Hypotheticals aside, even Scalia seemed to have his concerns with Florida's system.

“Is it clear to the jury that they are the last word on whether an aggravator exists or not?” he asked.

Winsor replied that the jury is told that they can't return a verdict of death without finding an aggravating circumstance, but Scalia wasn't satisfied.

“Then they're also told that the judge is ultimately going to decide whether your recommendation stands or not,” he said. “But shouldn't it be clear to the jury that their determination of whether an aggravator exists or not is final?”

Winsor attempted to cast this lack of clarity as a feature, rather than a bug, of the Florida system, because it allowed a judge to override a verdict of death if he believed that it was inappropriate.

But if a jury has the final determination of whether an aggravator exists, “that's a lot more responsibility” than if “you weigh it and provide for the death penalty, the judge is going to review it anyway,” Scalia said.

“Either the jury is correctly told that its role is merely advisory,” as it was here, “in which case there is a Ring violation, or the instruction that it's given violates the Eighth Amendment” under Caldwell v. Mississippi, 472 U.S. 320 (1985), because “it ‘minimizes the jury's sense of responsibility for determining the appropriateness of death.'”

Unanimity Not Required?

The lack of unanimity required for the recommendation of death seemed to bother certain justices more than others.

Waxman argued that under Florida's system, “it is impossible to know even if a single majority agreed on a single aggravator.”

Chief Justice John G. Roberts Jr. called that a “common feature of jury deliberations.”

“Are you sure that, if you have a crime that can be satisfied by various elements, the jury has to agree upon the specific element that satisfies it?” Scalia asked.

Breyer illustrated this with an example, saying that no one asks in a robbery conviction if the jury was unanimous as to whether there was either force or a threat of force.

Sotomayor seemed more concerned, though. “You think a seven to five recommendation is finding an element of the crime that makes you eligible for the death penalty by a unanimous or functionally equivalent unanimous jury?”

When Winsor replied in the affirmative, she responded, “then what do you do with the statement in our case law that says a simple majority is not a unanimous jury?”

Winsor responded that they were relying on Apodaca v. Oregon, 406 U.S. 404 (1972), but Justice Ruth Bader Ginsburg noted that Apodaca had upheld a 10-2 verdict.

“Does ten to two automatically mean that seven to five is okay?” she asked.

Waxman pointed out that Apodaca was “extraordinarily unusual,” and said that “even there, six justices indicated that a simple majority rule would not pass muster.”

He also urged the court to overrule Apodaca, at least when it comes to capital sentencing juries.

Factors or Elements?

Scalia pushed back on the idea that aggravating factors needed to be found unanimously by the jury.

“The necessity of finding the elements of the crime goes all the way back into the mists of history,” he said.

But “this necessity of finding an aggravating factor, we made it up, right? I mean, that's just recent Supreme Court law,” he said.

Waxman appeared to have been prepared for this question. He recalled a case “where you were choosing between two things that you didn't particularly like,” one of which involved making a factual finding of a specified aggravating factor an element of the crime.

“Whether it's recent, whether the court should or shouldn't have done it, it has,” Waxman said.

Even leaving aside that issue, Waxman said “when a Florida sentencing jury finishes its work, there is simply no question: The defendant is not eligible for the death penalty. Only the trial judge can do that.”

That is “the central Sixth Amendment problem in this case,” he concluded.

To contact the reporter on this story: Nicholas Datlowe in Washington at ndatlowe@bna.com.

To contact the editor responsible for this story: Jeffrey D. Koelemay at jkoelemay@bna.com

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